Mortlock (Migration)

The applicant sought an Other Family (Residence) (Class BU) visa, specifically a Subclass 835 (Remaining Relative visa). The decision under review was made by the Minister, and the applicant's case was referred for consideration. The Tribunal, presided over by Maxina Martellotta, was tasked with determining whether the applicant met the criteria for this visa subclass.

The primary legal issues before the Tribunal were whether the applicant qualified as a "remaining relative" of an "Australian relative" at the time of application and continued to do so at the time of the decision, as required by clauses 835.212 and 835.221 of the Migration Regulations 1994. This involved interpreting the definitions of "Australian relative" and "remaining relative" as set out in regulations 1.03 and 1.15 respectively, and assessing whether the applicant's sister, Mrs Neill, met the criteria of being an Australian citizen and "usually resident in Australia."

The Tribunal reasoned that Mrs Neill, being the applicant's sister and an Australian citizen, satisfied the requirement of being an "Australian relative." Furthermore, applying the principles established in cases such as *Scargill v MIMIA* and *MIMIA v Hidalgo*, the Tribunal found that Mrs Neill was "usually resident in Australia," considering both her physical presence and intention to reside there, as evidenced by her living in Australia with her husband and two Australian citizen children. The Tribunal also considered the definition of "near relative" under regulation 1.15(2), though the specific outcome regarding this limb was not detailed in the provided text.

Ultimately, the Tribunal affirmed the decision not to grant the applicant the Subclass 835 visa.